July 18, 2010

"I am not there to entertain anybody," says Clarence Thomas, disparaging Supreme Court oral argument, in which he famously refrains from participating:

[At the Utah State Bar’s 2010 summer convention yesterday, Thomas said], oral argument was an opportunity for attorneys to tease out their case.

When he first arrived on the court, members “actually listened to lawyers,” Thomas said. “We have ceased doing that. Now it’s become a debate or seminar. I don’t find that particularly helpful. It may be entertaining, but I am not there to entertain anybody.”

“There can be some questions to clarify things, to challenge it, but you don’t need 50 questions per case,” Thomas said. “That becomes more like “Family Feud” than oral argument.”

Here's another analogy: "I would equate trying to get the members of the court to do what you want them to do with herding gnats in a hurricane." That's especially interesting in light of the way some people imagine that Elena Kagan will somehow coax or cajole the others — or Anthony Kennedy — to go her way. Here's what Dahlia Lithwick said about that, back in May:

Obama—who could announce his pick as soon as this week, and the heavy betting is on Solicitor General Elena Kagan—is looking for a diplomat who will forge consensus, build bridges, and bring together a polarized court....

[J]ust because Kagan hired several conservative scholars when she was dean at Harvard Law School doesn't mean she'll have some kind of stunning intellectual influence over the Roberts Court's conservatives....

[R]educing the search for a Stevens replacement to a quest for the most able logroller on the left does nothing to dispel the widespread public perception that conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room. The selection of a new Supreme Court candidate should be an opportunity for the president to answer that claim with a crystal-clear message about the nature of liberal jurisprudence. "We think she might be able to flip Kennedy," is neither a powerful nor inspiring judicial vision....

Perhaps President Obama shouldn't be so quick to denigrate a nominee whose greatest impact on the court will be writing passionate dissents. Once upon a time that passionate dissenter was Justice Antonin Scalia. And if the sometimes-prickly justice has proved anything in recent years, it's that decades of bitter and brilliant dissenting opinions can be more influential over the long haul than all the negotiation skills in the world.

So the liberal Lithwick wanted more of prickly hothead. Instead, she and we got the supposedly charming Kagan, who, for some reason, is the least popular Supreme Court nominee — successful nominee — since Gallup started polling people, at the time of the Bork nomination. (Bork and Harriet Miers, unsuccessful nominees, were less popular than Kagan.) Why is that? Could it possibly be that Americans don't like the idea of a Supreme Court Justice who is best known for social skills?

Why isn't Kagan more popular?

She seems to be more about social than legal skill and people think that's wrong.

She didn't say or do anything in the confirmation hearings that made any kind of impression.

She's supported by Democrats, and people are afraid of Democrats now.

There's prejudice against her based on her sex and her religious background.

There's a lot of free-floating unhappiness these days making people give negative answers to polls.

Meanwhile, in the "How dare people say there are racist elements in the Tea Party!!!" category, the National Tea Party Federation (whatever the hell that is) has kicked out Mark "Barack Obama is a Indonesian Muslim Welfare Thug" Williams and his Tea Party Express after he went and embarrassed them some more.

Of course, in saying that they are expelling the Tea Party Express, they don't actually give the reasons why they are kicking them out, because that might actually involve admitting that the NAACP was right in saying there are racist elements in the Tea Party.

One gets the impression The Zero believes the Lefty line that they're the only ones with any brains and he needs somebody who will seduce (I know) Anthony Kennedy or someone else over the the Dark Side.

I hope that isn't the case because it makes him a lot duller than some here fear he is.

I didn't realize that you had to be popular to be a good Supreme Court Justice. I just thought you had to be competent.

Who care if she is popular. I'd take talented over popular any day. Speaking of unpopular, Clarence Thomas is probably the most unpopular just in 100 years. His clerks hate him, he doesn't even write his own opinions and is a nasty nasty man. Who cares.

No 1 She seems to be more about social than legal skill and people think that's wrong has overtaken No 3 She's supported by Democrats, and people are afraid of Democrats now because many believe it to be an insider's/smarter view.

Here's a paradox that isn't really a paradox, I think. Polls keep finding that people are (relatively) much happier with Obama than any policy or person associated with Obama.

Most people don't know anything about Kagan except she's associated with Obama.

So what's happening?

A lot of the independents out there felt really good about smashing through a racial barrier by voting for Obama. But aside for that feel-good, there isn't a whole lot to feel good about the actual Obama administration, and a whole lot to feel really bad about it.

Every chance people get to vote against Obama, the guilty independents jump at.

OK, I have to say that I am stumped. I voted for #2 (lackluster performance in confirmation hearing), but that was before I read the link. Apparently, confirmation hearings don't affect the poll rankings of appointees.

So, maybe it's #5. People are just disgruntled, so when they have no opinion, they express a negative one.

The poll registered a 68% approval rating for Kagan among Democrats, which struck me as quite low. I wonder if Kagan's problem is that she is perceived as liberal by people who prefer moderate/conservative justices and as moderate by people who prefer liberal justices.

I still see in Kagan as an accommodator that will grow into a wise Justice. If we can get Palin in as President in 2012, before a new liberal majority gives away the store, then Kagan will go along with a Conservative court. We cannot afford to fumble around and be seduced by a faction running a stalking horse candidate for the 2012 nomination, really awaiting 2016. So what Palin is a woman.

Palin as President, make me throw up a little in my mouth. How do I know? Know people who have worked for him. Not disgruntled people who were fired, real clerks who worked for him. Really, who cares whether she is popular or not. I vote for competence any time, that is why I would never vote for Palin. Quitter and ultimately will be a loser.

Now,I am sure that there are those among you who say, she just doesn't like conservative women. Bull. I am actually considering voting for Meg Whitman for governor in California. If I can get over the fact that she never voted in a national election until 2 years ago, when she started her exploratory committee to run for governor. Other than that, I like her a lot and think she would be a great governor. Fiscally conservative and socially liberal.

@althouse: "RCP." Real Clear Politics, a Socialist outfit, well known for producing, IMHO, terribly ineffective surveys. However, RCP does an adequate job of summarizing various polling on political topics.

"Chugging:" keep on doing what you do on your blog, contary to individuals who might have an opinion on a blogging approach.

Vicki said...."Speaking of unpopular, Clarence Thomas is probably the most unpopular just in 100 years. His clerks hate him, he doesn't even write his own opinions and is a nasty nasty man."

If you were a Republican you would be labeled a racist, bigoted pig. But since you are not, we can only label you a certified moron. You may ask, how do I know you are certified moron? Because I read your work.

I don't know mesquito? About the time anything you have to say either makes any sense or anyone really cares. At least I am not a lemming and follow the almighty righties in to the fray.I sense you were rejected by good colleges and ended up either not graduating from college or going to anywhere that would accept you. Envy is a bitter, bitter pill. Elitist haters generally are. Envious, that is.

Incidentally, it explains precisely why Americans don't like Kagan. She is a product of the ruling class-- she has eaten, drunk, and slept it her whole life. Americans are not stupid and know this, even if they aren't able to elucidate it as the article does. The public is repulsed by her and-- more importantly-- what she stands for.

You've certainly got my number, Vicki. Rejected by Harvard I attempted, but did not finish, an associates degree in Consumer Mathematics from Caprock Community College in Amarillo, Texas. Oh, the mortification.

I think that there is a lot going on here, and much of it involves liberal overreach by the President and Congress. They over-read their "mandate" of "change", thinking that it extended to totally reworking the economy, the health care system, the financial system, foreign policy, etc. And, as a result, this slightly right of center country has a very natural reaction to all this liberal power grabbing. Kagan is just one part of this, but has become somewhat of a lighting rod for those who are not yet ready to question the Obama Presidency.

Initially, the Democrats thought that they had another stealth candidate. Turns out, they didn't. She has much too much of a track record, and much of it is not in conformance with the bulk of Americans. It is much too liberal. She has just done, over the years, many too many things that the American public does not approve of. Not so much as SJ, but rather, at Harvard and in the Clinton White House.

She might have been able to overcome this if she had had CJ Robert's charisma. She doesn't. Instead we have just another smart liberal Jewish woman with impeccable elitist credentials, and little else, except for that record.

We heard media call Hillary, while she was still "the 1st Female President in Waiting" - until a morally superior Negro enticed the liberals and progressive Jews - as the "Smartest Female Lawyer in the Country" or somewhere on the list of Top 10 or 25 to more "objective" journalists serving the Democrats.

Then we find she never handled a case in court, failed her Bar Exam, and all her titles and clients and Board appointments could to cynical people - be tracked back to Nepotism.

But Hillary was smart. We know her grades and rank at Wellsley. We know she was not anywhere near as smart as Bubba (who makes most lists of 5 smartest Prez ever), but smart enough.

Black Messiah? It's all wrapped up and Lefty journalists are warned to steer clear. As if his pal students and faculty advisors making him not the merit-based Editor, but the meaningless honorific of "1st Black President of Harvard Law Review" despite him never publishing anything is supposed to seal the deal on his Amazing Brilliance.Nothing about his SATs, junior college (err transfer college) Occidental, Columbia gpas. Nothing about his LSATs. Nothing about Harvard other than being in upper 3rd while "race norming" was an issue at Harvard to help "minority graduation rate problems".

Nothing about his legal writings after Harvard, because with what liberals call his "incredible mind" he had none, as "The Perfessor" never was forced to write anything because he was a Lecturers given a different sort of tenure by mentors in the wealthy Jewish Families that are major donors to U of Chicago - the Crown, Pritzker, and Klutznik clans. Instead, Obama was the only senior Lecturer at any prestigious Law school in the country who never did any high level legal work.

Actually, you can say that either Obama or his mentors - are truly brilliant about being able to do so much with so little.

===================On Kagan...my thinking is she suffers from a public perception of being another alien unlike them..who has taken over and is now running the country.Another NYC resident, another Harvard Elitist, another liberal Jew from the Coasts, another academic with no real life experience that will pop up like her fellow academics after the financial meltdown, heathcare, Oil Spill - in charge and telling everyone what to do.

My favorite Justice is still Clarence Thomas. His concurrence in McDonald v. Chicago is just classic.

His clerks hate him, he doesn't even write his own opinions and is a nasty nasty man.

Some might. I know some who don't hate him. But if you have read very many of his opinions, you would know that your assertion about him writing his own opinions (to the extent that any Justices do) is mistaken. His judicial voice is unmistakable. I would suggest that it is the most unmistakable on the Supreme Court right now, even more so than Justice Scalia's.

And why is he considered so nasty? My guess is that it is because when he speaks on race, he puts the lie to the claimed benevolence of the liberals on the court (and in politics). And he makes his point so well, so articulately, that those opinions of his are remembered.

Another NYC resident, another Harvard Elitist, another liberal Jew from the Coasts, another academic with no real life experience.

Normally, I condemn Cedarford's antisemitism. But this time, I think there is something there. She would be the third Jew on the Supreme Court, along with six Roman Catholics. Three of the four liberals on the Court would be Jewish, along with almost a dozen in the Senate.

The problem here is not that she is Jewish, per se, but rather, that she is so unrepresentative of the rest of the country. If she were the only east coast liberal Jewish Justice, it wouldn't matter. But she wouldn't be, but rather, one of three, constituting 1/3 of the Justices on the Supreme Court.

And, yes, I don't think that it helps that she is a woman here. In this case, it just comes across as affirmative action. Why wasn't a man nominated? Because, apparently, the selection criteria excluded such (as evidenced by Administration's "short list").

If you really want to do something, nurture GOP leaders. Why? You have got any. What about Palin, Romney, Huckabeen, Jindal, Barbour, Gingrich?

Do not make me laugh silly? These guys (and the lady) will be buried like an avalance. They have no class, no leadership skills, etc. Hell, any figurehead in Democratic Party has more going for him or her than these people.

Think of Ryan, Christie, Daniels, etc. Prepare them for 2016. Get them some good victories in next few years.

Start from stratch. Start from the bottom. Don't look for quick fixes. You will only embarrass yourself.

N.B.: Even if the Administration makes a mistake, it will not matter. The current crop of GOP so called leaders are so bad that the President can win with eyes close. GOP is really washed up. I feel sorry for GOP. So, I am giving free advice. Else you would have to pay my high-end consulting fees.

NEW ORLEANS (AP) -- BP and the Obama administration offered significantly differing views Sunday on whether the capped Gulf of Mexico oil well will have to be reopened, a contradiction that may be an effort by the oil giant to avoid blame if crude starts spewing again.

Pilloried for nearly three months as it tried repeatedly to stop the leak, BP PLC capped the nearly mile-deep well Thursday and wants to keep it that way. The government's plan, however, is to eventually pipe oil to the surface, which would ease pressure on the fragile well but would require up to three more days of oil spilling into the Gulf.

"No one associated with this whole activity ... wants to see any more oil flow into the Gulf of Mexico," Doug Suttles, BP's chief operating officer, said Sunday. "Right now we don't have a target to return the well to flow."

An administration official familiar with the spill oversight, however, told The Associated Press that a seep and possible methane were found near the busted oil well. The official spoke on condition of anonymity Sunday because an announcement about the next steps had not been made yet.

The concern all along -- since pressure readings on the cap weren't as high as expected -- was a leak elsewhere in the wellbore, meaning the cap may have to be reopened to prevent the environmental disaster from becoming even worse and harder to fix.

Victoria: "Clarence Thomas is probably the most unpopular just in 100 years. His clerks hate him, he doesn't even write his own opinions and is a nasty nasty man. Who cares."

"Palin as President, make me throw up a little in my mouth. "

"Quitter and ultimately will be a loser."

"I sense you were rejected by good colleges and ended up either not graduating from college or going to anywhere that would accept you. Envy is a bitter, bitter pill. Elitist haters generally are. Envious, that is."

"A small, bitter man."

As is often asked, do you notice how rude lefties are in political discussions?

BTW, anyone needing to hold out their college performance or alma mater as proof of their superiority is clearly admitting that they have not accomplished anything substantial in real life, but they are really really ready to pretty soon.

When liberals discuss conservatives, they have a special level of hatred of the black guys. And it doesn't matter if the guy is like Thomas, and keeps his views mostly to himself unless asked. His race pushes him right to the bottom with the likes of Rush, Cheney or Coulter.

She's not popular because Obama's not popular, and since she's not terribly remarkable in any way a normal person would care about (not a "first", yet another Yarvard, etc), she's under Obama's "shadow".

I can’t read the public’s mind on this, but these are my problems with her.

First, she is an awful advocate. Anyone claiming she can win kennedy should look at how she lost him in citizens united.

Second, she comes off as a bureaucrat rather than a thinker.

Third, I have come to think she isn’t very smart. The moment that crystallized it for me was the “eat your vegetables law” hypothetical. She cited no constitutional difficulty with a law requiring Americans to eat a certain number of vegetables, and indicated that she would uphold it. Either she didn’t know the constitutional issue was there, or she thought she was being cute by side stepping it, but in doing so she made us think that she would uphold it. So either she was too slow to get the point of the question, or she told a stupid lie, in either case she is too stupid.

Now I have long said that because of the first issue, I supported her as the best case scenario for conservatives—an unpersuasive liberal. But I cannot support a dullard for the supreme court.

Dean Kagan's so-called "social skills" hardly immunized her when she launched a whitewash and coverup of the ghostwriting/plagiarism scandals involving Alan Dershowitz, Charles Ogletree, and Larry Tribe a few years back. Some Harvard law students (yours truly included) launched two blogs attacking the professors and Kagan, and we're still active. Leading academics have corresponded with and praised us, including most recently Prof. Brian Leiter, who recommended our "often funny blog."

Recently we've focused on how Kagan interjected herself in the Tribe investigation despite a serious conflict of interest (having been a Tribe ghostwriter as a student, she had an incentive to sweep it under the rug, which she did).

For loads of entertainment on this sad subject, including clips of HLS Drama Society parodies, click:http://authorskeptics.blogspot.comhttp://harvardparody.wordpress.com

She is emblematic what is wrong with the political class. The women seems to have never held an unorthodox opinion or said anything that her liberal masters didn't want to hear. She may be a bright woman. I don't know. But she clearly got ahead, not by thinking or through any kind of excellence beyond mastering the art of telling those above exactly what they wanted to hear.